Free Software Matters:
Shaking Up The Microsoft Settlement

The deal between Microsoft and the United States government
has now met the force of electronic democracy. Back on November 6, the
Bush Administration made a settlement with Microsoft, apparently
designed to compromise the long-running antitrust action brought by
the Clinton Administration. The settlement contained numerous
provisions seemingly designed to control Microsoft's market conduct,
including requirements that Microsoft make available information about
its application program interfaces (APIs), in order to permit
competitors to interoperate with Microsoft products.

In fact, the settlement agreement was carefully tilted in favor of
Microsoft, the wrongdoer supposedly facing judgment for illegally
maintaining a monopoly. In all its details, the agreement was
tailored to give the appearance of more protection against
monopolization than was actually achieved.

But American antitrust law is primarily about protecting democracy
againt private economic power, a nineteenth-century truth that
twentieth-century politicians only occasionally remembered. Under our
antitrust laws, when the government settles such a case it is required
to publish the settlement agreement, accept public comment, and then
convince the relevant trial judge, in light of the comments, that the
settlement reached protects the public interest. Under twenty-first
century communications conditions, as the outstandingly pro-corporate
Bush Justice Department just learned, that's a weapon with new power
to protect freedom. More than twenty thousand people and
organizations filed comments during the comment period that just
ended, and although Microsoft-allied lobbying organizations went so
far as to offer handheld computers to a few lucky winners in a lottery
whose entry ticket was a pro-Microsoft letter to the Justice
Department, the bulk of the comments highlighted all the ways in which
the deal was fixed.

On behalf of the Free Software Foundation, I filed a comment with the
Department of Justice concentrating on the API disclosure provisions,
which are the single most important aspect for the free software
community. Free software--through the combination of the GNU
operating system, the Linux kernel, the X Windows system, the Windows
emulator WINE and other free programs--can, if Microsoft fully and
completely documents all the Windows APIs, be readily adapted to run
all existing applications written for Windows, without modification.
This would allow you to purchase Windows applications from developers
of your choice and run them directly on a competing free operating
system. Sounds like a pretty good remedy against an illegal monopoly
in PC operating systems, which is what the US government succeeded in
proving at trial that Microsoft was. But the relevant
provision in the Bush Administration's settlement contains a Microsoft
booby trap:

Microsoft shall disclose to [relevant developers and other industry
participants] for the sole purpose of interoperating with a
Windows Operating System Product, ... the APIs and related
Documentation that are used by Microsoft Middleware to interoperate
with a Windows Operating System Product.

In other words, Microsoft only has to disclose the APIs used by the
Internet Explorer to applications developers, not to developers of any
competing operating system. The settlement was carefully twisted by
Microsoft's lawyers to exclude from its benefits Microsoft's actual
competitor, the developers of GNU, Linux, X and WINE.

Other provisions of the settlement follow the same course. Microsoft
is required to disclose communications protocols, but only, again, for
the purpose of writing Windows applications, not a competing OS.
Microsoft can prohibit sub-licensing, so someone who gains API
information to write Windows applications can't release that code
under GPL, for modification and use in WINE or X Windows. Microsoft
can charge royalties for this information, so that even though free
software discloses all its APIs for free, Microsoft is not
required to engage in reciprocity. In these and several other areas
Microsoft lawyers were able to turn an agreement intended to remedy
illegal monopolization into a charter for continued exclusion of free
software competition. The Bush Justice Department either didn't
understand or just didn't care.

The United States Government is now required to spend an estimated $2
million publishing all the comments received in the US Federal
Register, and to summarize the arguments made in a filing with the
District Court, which has the power to accept or reject the
settlement. The Free Software Foundation, acting as the author and
distributor of GNU and other parts of the competing free operating
system, and on behalf of all other free software developers, will ask
the District Court for the opportunity to present evidence in line
with its comments, showing that the settlement negotiated by the Bush
Administration is not in the public interest and will not restore
competition to the market Microsoft illegally controlled. This
process will proceed alongside the continuing European Commission
investigation of Microsoft; EU regulators will no doubt carefully
consider the major flaws in the US settlement disclosed in the comment
period.

The battle to end monopolization by the leading architect of software
unfreedom still goes on. But it is already clear that electronic
democracy has won a very important round, bringing to world attention
again why Free Software Matters.

*Eben Moglen is professor of law and legal
history at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read more of
his writing at moglen.law.columbia.edu.